Date: Sun, 08 Jun 1997 12:03:21 -1000 queerpolitics@abacus.oxy.edu, queerplanet@abacus.oxy.edu, submit@qrd.org, glb-news@listserv.aol.com From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 01: Hawai`i's Future Today Aloha kakahiaka kakou. In response to a question from Uncle Ward, please note that Christopher, in Texas, and his partner Rod, in Western Australia have graciously offered to help collaborate on this project. They are at this time building a website to "hang" the 270ks of Opening and Answering Briefs filed so far, and have considered to expand it to include the amici briefs as well. Further, there is one more major brief of unknown length due from Charles Cooper on behalf of the state sometime soon, and I can account for at least 6 more amici curiae briefs beyond the ones I have in my posesssion that might get posted today. Also, please note that subject line (above) of these amici briefs are categorized by UPPER CASE--FRIENDLY TOWARDS, and Upper and lower case--opposed to, same-gender marriage. The following brief has such a big hole in its "sole purpose," you could rearrange furniture inside. Also, you might want to note [fn11] for future reference. No.20371 IN THE SUPREME COURT STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) Civ. No. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) (Injunctions) PREGIL, PAT LAGON, JOSEPH ) MELIILLO, ) APPEAL FROM THE FINDINGS OF ) FACT AND CONCLUSIONS OF LAW Plaintiffs-Appellees, ) ) vs. ) FIRST CIRCUIT COURT ) LAWRENCE H. MIIKE, in his official ) capacity as Director of the Department of ) THE HONORABLE KEVIN S.C. CHANG Health, State of Hawaii, ) ) Defendant-Appellant ) _____________________________________________) HAWAII'S FUTURE TODAY'S AMICUS CURIAE BRIEF CERTIFICATE OF SERVICE KOSHIBA AGENA & KUBOTA JAMES E.T. KOSHIBA 768-0 2600 Pauahi Tower 1001 Bishop Street Honolulu, Hawaii 96813 Telephone No.: 523-3900 Attorney for HAwAII'S FUTURE TODAY TABLE OF CONTENTS TABLE OF AUTHORITIES..........................................................1 I. STATEMENT OF THE QUESTION PRESENTED........................................1 II. ARGUMENT..................................................................1 A. Basic and Fundamental Principles. Grounded in Our Nation's History and Woven Into the Fabric of Our Society, Have Long Satisfied the Compelling Governmental Interest Test......................2 B. The Institution of Marriage Between One Man and One Woman Stands at the Very Heart of Our Societv SatisfYing What is Perhaps the Most Compelling of All Societal Interests.................3 1. American Society Has Long Recognized Marriage Between One Man and One Woman as One of the Most Important Institutions in Perpetuating Crucial Social Goals...................3 2. Hawaii Society Has Long Recognized the Crucial Importance of Traditional Marriage and the Substantial Benefits that Relationship Provides to the Community..............................5 C. Case Law FirmlY Establishes that Traditional Marriage Between One Man and One Woman Serves Compelling Governmental Interests to Protect Societal Peace, Safety. Order, and Public Morality...............................................7 III. CONCLUSION..............................................................10 TABLE OF AUTHORITIES U.S. Supreme Court Cases Barnes v. Glen Theatre, Inc., 111 S.Ct. 2456 (1991).....................2 Boddie v. Connecticut, 401 U.S. 371(1971)............................3, 5 Bowers v. Hardwick, 478 U.S. 186 (1986).................................1 Burson v. Freeman, 112 S.Ct. 1846(1992).................................2 Davis v. Beason, 113 U.S. 333(1890).....................................8 Goldman v. Weinberger, 475 U.S. 503 (1986)............................2,4 Griswald v. State of Connecticut, 381 U.S. 479 (1965) (Harlan, J. concurring).................................................3 Marsh v. Chambers, 463 U.S. 783 (1983)..................................2 Maynard v. Hill, 125 U.S. 190(1888).....................................3 Murphy v. Ramsey, 114 U.S. 15 (1885)..................................3,8 Poe v. Ullman, 367 U.S. 497 (l961)(Harlan, J. dissenting)...............7 Reynolds v. United States, 98 U.S. 145 (1878).........................8,9 Richmond Newspapers Inc. v. Virginia, 448 U.S. 555(1980) (Brennan, J. concurring)................................................2 Skinner v. Oklahoma, 316 U.S. 535 (1942)................................4 United States v. Lee, 455 U.S. 252 (1982).............................4,5 Walz v. Tax Commission, 397 U.S. 664 (1970).............................2 Hawaii Cases Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993).......................1,6 State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983)....................10 Whitehead v. Whitehead, 53 Haw. 302,492 P.2d 939 (1972).................5 Other Federal cases Action For Children's Television v. F.C.C., 58 F.3d 654 (D.C.Cir. 1995)........................................................2 Baker v. Wade, 769 F.2d 289 (5th Cir. 1985)............................1 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989)......................1 Dean v. District of Columbia, 1992 W.L. 685364 (D.C. Super. 1992)...9,10 DeSantis v. Pacific Tel. & Tell. Co., Inc., 608 F.2d 327 (9th Cir. 1979)........................................................1 High Tech Gays v. Defense md Sec. Clearance Off., 895 F.2d 563 (9th Cir, 1990)........................................................1 -1- Potter v. Murray City, 585 F. Supp. 1126 (1984), aff'd, 706 F.2d 1065 (10th Cir. 1985)...............................8, 9 Pursley v. City of Fayetteville, 628 F.Supp. 676 (W.D. Ark 1986).......2 Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984)..........1 Other State Cases Barlow v. Blackburn, 798 P.2d 1360 (Ariz. App. 1990)...................8 In Re State ex rel. Black, 3 Utah 2d 315, 283 P.2d 887 (1955)..........8 Lawson v. Commonwealth, 291 Ky. 437, 164 S.W.2d 972 (1942)............._ M.I. v. A.L, 107 Misc. 2d 663, 435 N.Y.S.2d 928 (1981).................8 Murgia v. Municipal Court, 43 Cal. App. 3d 375, 117 Cal. Rptr. 888 (1974).................................................................2 Radecki v. Schuckardt, 50 Ohio App. 922, 361 N.E.2d 543 (1976).........8 State v. Barlow, 153 P.2d 647 (Utah 1944)..............................8 Statutes Cited Statute Laws of His Majesty Kamehameha III, King of the Hawaiian Islands, Chapter IV, Article I, Section I.......................................6 1994 Haw. Sess. Laws, Act 217, §§ 1, 8.................................7 H.R.S. §§ 88-93, 171-74, 338-14.5, 359-52, 386-43, 510-8,572-24, 580-47, 584-4, 626-1.....................................6 Law Reviews Cited Plummer, Constitutional Right to Same-Sex Marriage, 43 Cath. U.L. Rev. 907 (1994)..........................................1 Books and Miscellaneous Cites B. Young, The Hawaiians, in People and Cultures of Hawaii 11, (McDermott, Tseng & Maretzki, eds., 1980)..........................................5 Honolulu Advertiser, 2/28/94, 8/4/94...................................7 Honolulu Star-Bulletin, 4/24191, 6/19/93, 11/6/93......................7 -ii- HAWAII'S FUTURE TODAY'S AMICUS CURIAE BRIEF I. STATEMENT OF THE QUESTION PRESENTED This case may well be the most important litigation ever to come before a Hawaii court. It will have immediate impact on Hawaii society, and its implications could be felt for decades, not just in Hawaii but across the nation. The question presented is: Should this Court order a radical reform in the basic institution of marriage, jettisoning long-recognized cultural and social values drastically redefining the fundamental structure of Hawaii's society? II. ARGUMENT By a plurality decision, this Court found gender discrimination in this case, remanding to the trial court to determine whether the State of Hawaii has a compelling governmental interest in prohibiting homosexual marriage.[fn1] Applying the "strict scrutiny" test, the trial court [fn1] Numerous courts, including the United States Supreme Court, have squarely or implicitly held that homosexuality is not a suspect classification deserving of heightened protection under the Equal Protection Clause. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 194-96 (1986); Baker v. Wade, 769 F.2d 289, 292 (5Q Cir. 1985); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); cert. denied, 494 U.S. 1004 (1990); DeSantis v. Pacfic Tel. & Tell. Co., Inc., 608 F.2d 327, 333 (9th Cir. 1979); High Tech Gays v. Defense Ind. Sec. Clearance Off., 895 F.2d 563, 571 (9th Cir. 1990); Rich v. Secretary ofthe Army, 735 F.2d 1220, 1229 (l0th Cir. 1984). Even more importantly for purposes of this case, every other court to have considered the issue has determined that prohibitions on homosexual marriage do not discriminate on the basis of sex. See Plummer, "Constitutional Right t Same-Sex Marriage, 43 Cath. U. L. Rev. 907, 941 (1994) ("no court has held a statute limiting marriage to heterosexual couples as a classification based on sex") (published prior to the Hawaii Supreme Court's decision in Baehr I 74 Haw 530 1993). determined that the State failed to establish a compelling state interest. Hawaii's Future Today, (hereinafter "HFT"), strongly believes that there are several governmental interests which satisfy the strict scrutiny test in this case: comity, the protection of children, procreation, protection of the traditional family and others. In this amicus brief HFT focuses solely on what it believes to be one of the most important and compelling interests supporting the State's ban on homosexual marriage: the historical and time-honored protection of traditional marriage as the fimdamental structure in Hawaiian society that advances basic societal goals and values. A. Basic and Fundamental Principles. Grounded in Our Nation's History and Woven Into the Fabric of Our Society, Have Long Satisfied the Compelling Governmental Interest Test. In determining whether a compelling governmental interest exists, the most important inquiry will often center in the history of the law in question, and in the fundamental societal interests and structure which it advances. See generally Goldman v. Weinberger, 475 U.S. 503 (1986); Action for Children's Television v. F.C.C., 58 F.3d 654, 660-661 (D.C. Cir. 1995). Under strict scrutiny, these "vital traditions" command respect, "in part because the Constitution carries the gloss of history," Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring), but more importantly because it is often possible to measure the worth of a particular tradition or basic institution only by looking to the place it occupies in "the fabric of our society." Marsh v. Chambers, 463 U.S. 783, 792 (1983). To be sure, the Court may well be aided in its constitutional analysis by the evidence presented by the parties at trial or by the opinions and studies of various experts. However, as in many other constitutional law cases of great societal importance, expert testimony and empirical studies need not be the determining factors.[fn2] Basic societal structure and historical public values play an important - and often [fn2] Thus, courts have upheld anti-picketing ordinances in residential areas because of the historical and long-entrenched interests of privacy and safety in the home, Pursley v. City of Fayetteville, 628 F. Supp. 676 (W.D. Ark. 1986); have upheld nudity prohibitions based upon the historically recognized interest "of protecting societal order and morality", Barnes v. Glen Theatre, Inc., Ill S.Ct. 2456, 2461 (1991); have upheld "no political speech zones" around election polls because of the "wide-spread and timetested" traditions of eliminating intimidation and election fraud, Burson v. Freeman, 112 S.Ct. 1846, 1855 (1992); have upheld discriminatory enforcement of felony motor vehicle statutes because of grave and long-recognized "societal values" in protecting individuals from harm; Murgia v. Municipal Court, 43 Cal.App.3d 375, 117 Cal. Rptr. 888 (1974); have upheld tax exemptions for religious entities based upon an unbroken historical practice that was "not something to be lightly cast aside", Walz v. Tax Commission, 397 U.S. 664, 678 (1970); and have upheld prayer in state legislatures because of its "unambiguous and unbroken history of more than 200 years" and because it has "become part of the fabric of our society." Marsh v. Chambers, 463 U.S. 783, 792 (1983). -2- determinative - role in strict scrutiny analysis. Analysis under the compelling governmental interest test can be conducted neither in a vacuum nor with a vision limited only to the present and the future. Indeed, almost all of the interests which we today term "compelling" have reached that pinnacle based on the test of time and on a long-term evaluation and decision by society: that the particular interest is of the utmost importance to the community's continued well-being. Institutions, structures, and principles crucial to the welfare of the state and its people are much better illuminated and understood by examining how they have actually performed in the past, rather than concentrating on how one particular expert or another believes they will perform in the fliture. For this reason, constitutional analysis must always be conducted with "continual insistence upon respect for the teachings of history", and with "solid recognition of the basic values that underlie our society." See generally Griswold v. State of Connecticut, 381 U.S. 479, 501(1965) (Harlan, J., concurring). These are the principles which should guide this Court's analysis as it renders its ruling in this most important case. B. The Institution of Marriage Between One Man and One Woman Stands at the Very Heart of Our Society. Satisfying What is Perhaps the Most Compelling of All Societal Interests. 1. American Society Has Long-Recognized Marriage Between One Man and One Woman as One of the Most Important Institutions in Perpetuating Crucial Social Goals. There can be no real dispute that traditional marriage - a union between one man and one woman - "involves interests of basic importance in our society." Boddie v. Connecticut, 401 U.S. 371, 376 (1971). Traditional marriage creates "the most important relation in life", and has "more to do with the morals and civilization of a people than any other institution." Maynard v. Hill, 125 U.S. 190, 205 (1888). Unqualified statements as to the importance of marriage between one man and one woman are abundant in the decisions of the United States Supreme Court and in the writings of the most respected jurists in history.[fn3] Given this long-held, uncontradicted view of traditional marriage, a compelling [fn3] See, e.g. Murphy v. Ramsey, 114 U.S. 15, 45 (1885), Opinion by Justice Mathews, (emphasis added). For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political movement. -3- governmental interest arises as a matter of course. Some societal institutions are so important, some basic structures so crucial, and some fundamental relationships so inherently intertwined in day-to-day living, that their protection is a compelling governmental interest in and of itself: We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. Skinner v. Oklahoma, 316 U.S. 535, 541(1942). In this litigation, appellees are not suing merely to gain benefits similar to those provided to married couples, nor are they simply asking to have their homosexual relationships recognized in some form or another by the State. Rather, they are seeking to alter the definition of itself - to make marriage into something it has never been before, and to force the State to radically change the fundamental institution which historically has lain at the heart of all humah, family, and social interaction, jettisoning long-recognized cultural values and drastically redeftning the fundamental structure of society. The strict scrutiny test does not require such a radical retooling of society's most important relationship; indeed, in similar cases it has required far less. The two leading federal cases are United States v. Lee, 455 U.S. 252 (1982), and Goldman v. Weinberger, 475 U.S. 503 (1986). In both, the United States Supreme Court determined that the government regulations at issue infringed upon constitutionally protected rights, thereby triggering the strict scrutiny test.[fn4] After a careful analysis under this test, in both cases the Court found a compelling governmental interest based upon the potential impact on the underlying institutions - in Lee the Social Security tax system and in Goldman the United States military. If, as the United States Supreme Court and the Hawaii Supreme Court have made plain, the governrnent has a compelling interest in assuring that institutions like Social Security, the military, and the corrections system are organized in the best way possible to serve and protect the national community, then surely government also has a compelling interest in assuring that marriage - the fundamental institution upon which society is based - is also defined in the [fn4] In Lee, a group of religious protestors brought suit alleging that their sincerely held religious beliefs were infringed by government regulations mandating that plaintiffs participate in the Social Security system. Concluding that the regulations infringed upon plaintiff's civil rights, the Court applied strict scrutiny. 444 U.S. at 257-258. Similarly, in Goldman, a Jewish soldier brought suit against the United States military claiming that Army regulations prohibiting the wearing of a yarmulke infringed plaintiff's civil rights, and therefore that application of the strict scrutiny test was necessary. 475 U.S. at 509-510. -4- best way possible to serve and protect that community. "[R]adically restrict[ing] the operating latitude of the legislature" here is both unwise and unnecessary, especially in an area of such crucial concern to the operation of society as we know it. Lee, 455 U.S. at 259. The invariable response from those who favor homosexual marriage is that they are not seeking to destroy marriage or alter its place in society, but rather to expand its definition so that more persons may participate. However, this "expansion" of marriage is really a wholesale restructuring of the institution itself. If appellees' view were accepted marriage in Hawaii would mean something that it has never meant before. The historic and time-honored institution which has been recognized as the foundation of our community would be flindamentally altered. If society is truly ready to make this unprecedented move, it should be the people - through their elected representatives - who should make such a choice.[fn5] When dealing with such an important issue going to the very survival of the marriage institution, the strict scrutiny test simply does not require a court to unilaterally and radically alter the very definition of the institution. Marriage, "as generally understood by all English speaking communities," is the union of one man and one woman to form the basic structure of society. It is difficult to imagine an interest more compelling than protecting and preserving this institution which has served society so well for so long. Traditional marriage itself is the compelling governmental interest. 2. Hawaii Society Has Long Recognized the Crucial Importance of Traditional Marriage and the Substantial Benefits that Relationship Provides to the Community. As in American society as a whole, Hawaii has also long-recognized that marriage between a man and a woman is a fundamental institution and a crucial structural component of the Hawaiian community. Here, "the family is the center of all relationships", reflecting the "core values of the Hawaiian way". B. Young, The Hawaiians, in People and Cultures of Hawaii 11 (McDermott, Tseng & Maretzki, eds., 1980). As the Hawaii Supreme Court recognized twenty-five years ago, "marriage involves interests of basic importance in our society." Whitehead v. Whitehead, 53 Haw. 302, 313, 492 P.2d 939, 946 (1972) (citing and discussing Boddie v. Connecticut, 401 U.S. 371, 374-377). Those interests are not to be taken lightly nor be easily cast aside. [fn5] At least 20 Bills have been introduced in the Nineteenth legislature of the State of Hawaii 1997. -5- In perpetuating the family as the basis of the Hawaiian community, marriage has been expressly or implicitly defined as a union between one man and one woman since at least 1846. See Statute Laws of His Majesty Kamehameha III, King of the Hawaiian Islands, Chapter IV, Article 1, Section I. Today, over a wide spectrum, traditional marriage has become ingrained in state law and in the way Hawaiian society operates. More than 125 different state statutes rely upon the marriage relationship or incorporate its definition into governing law.[fn6] To be sure, as the Court in Baehr I outlined, some of these statutes confer upon a married couple benefits and rights to which other individual members of society currently are not entitled. See 74 Haw. at 560, 852 P.2d at 59. But a far greater number of these statutes impose obligations on the married couple or otherwise create presumptions as to how society will deal with issues that naturally arise from marriage between a man and a woman.[fn7] The marriage relationship in Hawaii is not simply a relationship between two people who exchange vows and thereby receive benefits under state law. Rather, marriage in Hawaii is the cornerstone of societv and of the family relationship. It permeates - and has permeated for centuries - almost all legal and social interactions, imposing obligation and responsibility. conferring rights and benefits, and establishing the governing parameters of the Hawaiian community. Significantly, in determining just how important the traditional marriage relationship is in Hawaii, this Court has unique input and information available to it which goes far beyond the important considerations of past legal precedent and historical review. If any doubt remained prior to 1994 about just how important traditional marriage is to the people of Hawaii, that doubt was totally eliminated by the compelling statements of the people's representatives. After the decision in Baehr I, the Hawaii Legislature amended Hawaii's marriage statutes, attaching lengthy legislative history on the role of traditional marriage in Hawaii and discussing at length the importance of maintaining the institution of marriage between one man and one woman. [fn6] As one might expect, these statutes run a wide gamut. See, e.g., H.R.S § 88-93 (governing pensions); H.R.S. § 171-74 (governing sales and leases of public land); H.R.S. § 338-14.5 (governing vital statistics and census); H.R.S. § 359-52 (governing housing for the elderly); H.R.S. § 386-43 (governing workers' compensation); H.R.S. § 626-1 (governing admissibility of evidence and privilege). [fn7] See, e.g., H.R.S. § 572-24 (imposing obligation to provide for spouse and to be liable for all debts incurred by spouse); H.R.5. § 580-47 (upon granting divorce court may impose obligation to provide for support, maintenance and education of the couple's children; or may impose obligation upon one spouse to provide for support and maintenance of the other spouse); H.R.S. § 510-8 (separate property/community property of husband/wife liable for debts of marriage); H.R.S. § 584-4 (presumption of paternity). -6- This Court is undoubtedly aware of this legislative history. Suffice it to say that, by a direct finding of the state legislature, there is a "recognized tradition of marriage in this State", which for more than 150 years has existed "to foster and protect the propagation of the human race." 1994 Haw. Sess. Laws, Act 217, §§ 1, 8.[fn8] Thus, exactly as in all other regions of the country, the institution of marriage in Hawaii has long served important governmental and societal purposes. Marriage between a man and a woman lies at the heart of this community; it is woven into the fabric of this society so inherantly that to change its definition would be to change society itself. As Justice Harlan stated, so eloquently: The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Poe v. Uliman, 367 U.S. 497, 546 (1961) (Harlan, J., dissenting) (emphasis added). The same is true for strict scrutiny analysis in this case. Traditional marriage is "so deeply pressed into the substance of [Hawaiian] social life" that a compelling governmental interest exists on that basis alone. C. Case Law Firmly Establishes that Traditional Marriage Between One Man and One Woman Serves Compelling Governmental Interests to Protect Societal Peace, Safety, Order, and Public Morality. Much has been made of the fact that the question before this Court is one of the first impression. To be sure, at least as far as HFT is aware, no court has ever before been called upon to determine whether a state prohibition on homosexual marriage satisfies strict scrutiny analysis. But that does not mean that there are not a number of forceful cases - decided under very similar circumstances on very similar claims - which strongly support the finding of a compelling governmental interest in this case. 1. Of most assistance are the polygamy cases. Beginning in 1878 and continuing to [fn8] The importance of keeping traditional marriage as the only legally recognized marriage relationship in Hawaii is still very strong among the general population today. At its lowest point in 1991, those opposed to homosexual marriage still exceeded those who favored it by a full fifteen percent. More significantly, after community debate and input on the subject, in 1994 a full 68% of the Hawaiian population opposed the recognition of homosexual marriage. See Honolulu Star-Bulletin, 4/24/91, 6/19/93, 11/6/93; Honolulu Adverti5er, 2/28/94, 8/4/94. -7- moden day, several courts have determined that the state has a compelling interest in protecting traditiQnal marriage. The leading case is Reynolds v. United States, 98 U.S. 145 (1878).[fn9] In that case the Court found a compelling interest in prohibiting polygamous marriages. Since Reynolds, several other state and federal courts have applied strict scrutiny to various issues raised by anti-polygamy laws.[fn10] Without exception, each court has determined that the government possesses a strong societal interest which outweighs the claimants' constitutionally protected civil rights. Many of these cases also provide additional insight into the overriding interest which society has in maintaining and protecting the traditional institution of marriage between one man and one woman. See, Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir. 1985); see also Radecki v. Schuckardt, 50 Ohio App. 922, 361 N.E.2d 543, 546 (1976) (strict scrutiny test satisfied based on the "strong or compelling state interest to protect societal peace, safety, order and morals"); In re State ex. rel. Black, 3 Utah 2d 315, 283 P.2d 887, 9Q3 (1955) (anti-polygamy statute upheld based upon the history and tradition of marriage in society, one of the most "important feature[s] of social life"). Perhaps the most persuasive of all the polygamy cases is the district court's opinion in Potter v. Murray City, 585 F.Supp. 1126 (1984), aff'd, 760 F.2d 1065 (10th Cir. 1985). In that case, the district court took "a fresh look at the problem" in light of the "more current authority" and the "present societal conditions and attitudes." 585 F.Supp. at 1141. It determined, however, that despite testimony from enlightened social experts to the contrary, the State's compelling governmental interest in protecting and advancing traditional marriage was as strong as ever. The similarities are striking between those who have attempted to assert their civil rights to force society to recognize polygamous marriage, and those who today attempt to assert their civil rights to force society to recognize homosexual marriage. In both instances, plaintiffs have [fn9] Reynolds was decided before the constitutional test of "strict scrutiny" had been so labeled by the Court. Nevertheless, the analysis applied by the Court was, for practical purposes, the "strict scrutiny test", a fact made plain by subsequent court opinions which have cited and discussed the Reynolds' holding. See, e.g., Radecki v. Schuckaral, 50 Ohio App.2d 922, 361 N.E.2d 543, 546 (1976); ML V. A.L, 107 Misc.2d 663, 668, 435 N.Y.S.2d 928 (1981). [fn10]. Barlow v. Blackburn, 798 P.2d 1360, 1366 (Ariz. App. 1990); David V. Beason, 113 U.S. 333, 344, U.S.Ct. 299, 30.1 (1890); In re State ex rel. Black, 283 P.2d 877, 902-904 (Utah 1955); Murphy v. Ramsey, 114 U.S. 15, 45, 5 S.Ct. 747, 764, (1885); Potter v. Murray City, 585 F. Supp. 1126, 1140 (C.D. Ut. 1984), aff'd 760 F.2d 1065, 1070 (10th Cir. 1985); State v. Barlow, 153 P.2d 647, 652-653 (Utah 1944). -8- convinced the controlling court that their civil rights have been violated by state marriage laws, have attempted to redefine marriage in our society to mean something that it has never meant before or have claimed a change in "social attitudes" which allegedly dilutes any interest government may previously have had in preserving traditional marriage. See Potter, 585 F.Supp. at 1140. In both instances, government has not only moved in decisive terms to prohibit recognition of such marriages, it has also "established a vast and convoluted network of other laws clearly establishing its compelling governmental interest in and commitment to a system of domestic relations" based exclusively on marriage between one man and one woman. See Potter, 760 F.2d at 1070; see generally provisions of Hawaii law cited in notes 6-7, supra. And perhaps most importantly, in both instances the traditional marriage relationship lies at the heart of society. It is the preferred basis for nurtring children, for teaching public virtue, and for the development of humankind. "Upon it society may be said to be built and... on [it] the government of the people, to a greater or less extent, rests" Reynolds, 98 U.S. 165-166. The polygamy cases provide strong support for a similar finding in this case.[fn11] 2. Although several other courts have been confronted with constitutional challenges to state prohibition of homosexual marriage, none has been forced to reach the compelling governmental interest question because, in every other case, the court has determined that prohibition does not constitute invidious discrimination against a suspect class. See supra note 1. Accordingly, at least as far as HFT is aware, strict scrutiny has never before been expressly triggered in a homosexual marriage case. In an alternative holding, however, at least one court has confronted the strict scrutiny analysis as it applies to a prohibition of homosexual marriage. In Dean v. District of Columbia, 1992 W.L. 685364 (D.C. Super. 1992), aff'd, 653 A.2D 307 (D.C. App. 1995), the trial court initially determined that the District of Columbia's prohibition of homosexual marriage did not [fn11] Beyond its precedential value, the polygamy cases also should provide great concern from a practical point of view. Should this Court determine that the State of Hawaii possesses no compelling governmental interest supporting its current traditional marriage laws when weighed against challenges brought by homosexuals, it is very difficult to conceive of a compelling governmental interest which would save Hawaii's traditional marriage laws when weighed against a challenge by polygamists. If marriage between one man and one woman is no longer a relationship of paramount importance to Hawaiian society, it would seem to make little difference whether the "new marriage relationship" is made up of two men, two women, two women and one man or any number of other possible combinations. The logical end to such an analysis are "marriages" of every kind and nature, limited only by plaintiffs' ability to identify some civil right supporting it - be it religious free exercise, a right to equal protection, substantive due process rights, privacy rights, or others. -9- trigger strict scrutiny because homosexuals did not qualify as a suspect class under the Equal Protection Clause. Nevertheless, the court determined that even if homosexuals were deemed to be a suspect class, that state law would still withstand constitutional analysis because it was supported by three government interests, "each of which is not only legitimate but compelling": First... procreation. Second,... legislative authorization of... same-sex marriages would constitute tacit state approval... [and third,] such authorization would constitute... "social tinkering".... Id at4. HFT's concentration is on the third interest. Society treasures traditional marriage because of the role the it plays in the development of humankind and in the benefits it provides to the community. As such, the protection of traditional marriage constitutes a compelling governmental interest whether weighed against religious rights (as asserted in the polygamy cases), against substantive due process and privacy rights (as asserted in the polygamy and most same-sex marriage cases), or against equal protection rights (as asserted by Appellees in this case). As the Supreme Court of Hawaii has expressly recognized, the state has a strong "social interest in order and morality". State v. Mueller, 66 Haw. 616, 628, 671 P.2d 1351, 1359 (1983). In moving to protect the most important human relationship known to society, the Hawaii Legislature was simply acting with that interest in mind. III. CONCLUSION Traditional marriage lies at the very cornerstone of Hawaiian society. Its compelling nature is evident in all aspects of daily life. The state may tolerate and even encourage other human relationships, but there can be no dispute that marriage between one man and one woman is special -- both in its definition and in the benefits it provides. This Court should rule in favor of the State and find that Hawaii's prohibition on homosexual marriage is supported by a compelling governmental interest. DATED: Honolulu, Hawaii, MAR 17, 1997 KOSHIBA AGENA & KUBOTA /S/ JAMES E.T. KOSHIBA Attorney for Hawaii's Future Today -10- ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "You can't put a cost . . . on something that is tantamount to civil rights." --Governor Ben Cayetano ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~